Citation Nr: 20045809 Decision Date: 07/09/20 Archive Date: 07/09/20 DOCKET NO. 18-49 226 DATE: July 9, 2020 REMANDED Entitlement to service connection for a chronic disorder of the lungs, including chronic obstructive pulmonary disease (COPD), to include as due to exposure to chemicals, solvents, and mustard gas, is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from January 1960 to August 1982. The Veteran’s military occupational specialties (MOS) were communications technician and communications supervisor. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the Veteran’s claims file. At the hearing, the Veteran waived RO consideration of VA-directed and developed evidence that had been associated with the Veteran’s claims file after the October 2018 issuance of the statement of the case (SOC). See May 14, 2020 Hearing Transcript, pp. 11-12 As noted above, the Board has recategorized the issue on appeal to reflect most fully and efficaciously, the contentions raised by the Veteran and raised in applicable evidence of record. In this respect, the Board notes that the United States Court of Veterans Appeals (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103; 38 C.F.R. § 3.159. Discussion The Veteran contends that a chronic disorder of the lungs, including COPD, was incurred in, aggravated by, or otherwise attributable to, active duty service. The Veteran advances that this disease entity was caused by exposure to mustard gas during Seventh Army Combined Arms School, CBR NCO course on two occasions in Vilseck, Germany in March 1963 and February 1968. See, e.g., May 14, 2020 Hearing Transcript, p. 2; March 24, 2017 Military Personnel Record, respectively. The Veteran also suggests that exposure to “other chemicals” and solvents used in his Army occupation as a communications technician caused, or aggravated, his chronic disorder of the lungs. See May 14, 2020 Hearing Transcript, p. 13. In May 2017, the RO initiated research on the Veteran’s reported exposure to mustard gas during the training course. The RO noted that the “Chem-Bio” site was not accessible but that a negative response was received from the Department of Defense (DoD) on May 10, 2017. This response is not of record. In June 2017, a Veterans Service History Review Checklist was associated with the file. The document listed all duty assignments by unit and location and negative exposure to chemical-biological agents and mustard gas. The document indicated that DoD could not confirm the Veteran’s exposure. However, the author noted the two dates of CBR NCO training classes and acknowledged that a three drop technique applying mustard agent to the forearm may have been used. The Board finds that this research is incomplete and inconclusive because the DoD responses were not included in the file so that the Board can assess the accuracy and level of detail. Moreover, the author of the June 2017 Checklist noted that the research did not address the CBR NCO training courses that may have included a three-drop technique. Additional research on the specific training techniques used in this course on the dates the Veteran was a student is necessary. In an October 30, 1968 Reenlistment Report of Medical Examination, a military clinician noted the presence of two small scars on the Veteran’s right posterior upper forearm as well as scars on the Veteran’s left anterior forearm. See May 14, 2020 Hearing Transcript, p. 4; July 24, 2003 STR—Medical, p. 22 (third entry from bottom), respectively. The Board finds the Veteran’s testimony as to this pin drop testing to be internally consistent, facially plausible, and to the extent of the existence of scars, consistent with the evidence of record (as noted above). See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). A review of VA treatment records and progress notes of record discloses highly divergent medical guidance as to the Veteran’s present pulmonary disability, to include possible mild COPD with radiographic emphysema, but normal pulmonary function test (PFT); dyspnea on exertion (DOE) of a multifactorial nature—COPD, pulmonary hypertension, obesity, deconditioning, and left ventricle (LV) systolic and diastolic dysfunction; a history of COPD; and COPD ruled-out (RO). Indeed, interpreting these divergent assessments and respective etiology requires additional, expert development. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (1) contains competent evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that an event, injury, or disease occurred in service or certain diseases manifested during an applicable presumptive period for which the claimant qualifies; and (3) indicates that the disability or symptoms may be associated with the established event, injury or disease in service or with another service-connected disability. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. See id. at 83. Here, the evidence does raise the issue a chronic disorder of the lungs, including COPD, may have been caused by, aggravated by established events in the Veteran’s active duty service, namely pin drop testing and/or exposure to “other chemicals” and solvents. To date, the Veteran has not been afforded a comprehensive VA pulmonary conditions evaluation. The matter is REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide or identify and authorize the recovery of any additional records of treatment for chronic disorder of the lungs, including COPD. If obtained, associate these treatment records with the claims file. All attempts to secure these records must be documented in the record. If any requested records are unavailable, the Veteran should be notified of such in accordance with 38 C.F.R. § 3.159(e). 2. Obtain and associate any updated VA treatment records with the claims file. All records/responses received must be associated with the electronic claims file. 3. Request from DoD or other appropriate sources information on the training techniques used in the CBR NCO courses attended by the Veteran in 1963 and 1968 in Germany and specifically whether students were exposed to skin or airborne mustard or other chemical-biological agents as part of training or experimentation. 4. Arrange for a VA addendum opinion and telehealth consultation (or—if practicable under current public health conditions, a VA examination) with a clinician with expertise in chronic pulmonary disorders. This clinician must carefully consider the Veteran’s accounts, as conveyed upon telehealth consultation, and review the entirety of the Veteran’s claims file, paying especial attention to any complaints of, treatment for, or diagnoses of, (any and all) chronic lung disorders. Upon completion of the above, the clinician is asked to respond to the following inquiries: a. What diagnosis, if any, best defines the Veteran’s current chronic pulmonary disorder? b. Whether the current chronic respiratory disorder or other residuals such as arm scars are at least as likely as not (50 percent probability or more) incurred in, aggravated by, or otherwise attributable to any aspect of the Veteran’s service, including the above-noted pin drop testing and/or exposure to “other chemicals” and cleaning solvents? (continued next page) The clinician must provide a rationale for each conclusion reached. The Board notes that the Veteran is competent to report his symptoms and history. Such reports, including those of continuity of symptomatology and functional limitations, must be acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran’s reports, she/he must provide an explanation for such rejection. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.